To kill or not to kill?

When Barack Obama announced in his State of the Union address that he would pursue his political agenda through executive order where he could not do so through legislative action, Republicans cried foul, and House Speaker John Boehner declared immigration reform dead because the president could no longer be trusted to enforce the law. This was a red herring, because Obama was not claiming new authority as such, and because Boehner’s real reason for suspending immigration reform was his inability to persuade his own caucus to pursue it.

Republicans have thus far been mute about a renewed abuse of executive authority, although it puts the constitution on the chopping block, not to say the rule of law itself. This is the disclosure that the president is getting back into the game of assassinating American citizens.

As far as we know, this practice dates back to the Bush administration, when after 9/11 it was decided to take out Americans believed to be working for al-Qaida or “associated groups” on the basis of intelligence reports. It is believed that four individuals were assassinated in this manner, although whether this was an actual count or the tip of an iceberg is unknown. Barack Obama inherited the assassination program and carried out a kill against Anwar Al-Awlaki, a citizen by virtue of his birth in New Mexico, who allegedly made propaganda videos on behalf of al-Qaida. Awlaki’s sixteen-year-old son, also an American citizen, was killed in a separate drone strike as well.

It was only with the death of Awlaki that the assassination program was revealed. Of course, American administrations had assassinated foreign leaders going back at least to the Kennedy years. But deliberately assassinating American citizens without even the fig leaf of a police raid was a new wrinkle. And announcing that citizens were prospectively in the crosshairs, as has just been done by unnamed Obama administration officials about an unidentified target, is a wrinkle on that.

Let’s be clear and simple about this. The extrajudicial murder of citizens is the hallmark of dictatorships. We tacitly approved the murder of thousands under the military dictatorship of Augusto Pinochet in the 1970s after helping bring him to power in a coup against a democratically elected government. It is not more morally tolerable to abet the murder of foreign citizens than to kill one’s own, but it is a step further toward extinguishing a domestic rule of law. For the citizens involved, it quite literally means extinction. For the rest of us, it substitutes for the rule of law with a sword of Damocles that hangs over all our heads. It replaces democracy, or for that matter any constitutional order, with an executive tyranny that spies at will on its citizens and kills at pleasure.

The spying and the killing go hand in hand. The two great revelations we have had under Obama are that the government spies on all of us without legal warrant or probable cause of suspicion; and that it reserves to itself the right to kill any of us without public charge or trial. Either of these constitutes an effective revocation of citizenship, as a denial of Fourth Amendment privacy rights and Fifth Amendment due process. It reduces us to subjects of arbitrary power.

In a speech as notorious as any ever delivered by a Nazi or Stalinist flunky and arguably even more brazen, Attorney General Eric Holder told a Northwestern University law school audience in March 2012 that targeted assassinations were not a denial of due process because unaccountable executive review satisfied constitutional requirements — in other words, that a secret tribunal acting on secret accusation was the functional equivalent of a trial in a public court of law. Even Orwell would have blanched at that, but, apart from a few civil libertarians and editorial writers, the political system didn’t bat an eye. That alone should show us how far along the road to tyranny we have gone, and how habituated we have become to accept almost any outrage in the name of security.

So, what’s going on now? We’ve been told that an unnamed individual living in Pakistan, who, according to The New York Times, “some believe is actively plotting terrorist attacks,” is under review for placement on the administration’s hit list. But why would a government as wedded to secrecy as Obama’s want a matter so sensitive to become public knowledge? Let us recall, after all, the administration’s fury at Edward J. Snowden’s disclosure of its spying program and its ham-handed attempt to threaten any foreign government that thought to offer him sanctuary.

The answer, I believe, lies in Obama’s desire to normalize assassination by selectively revealing tidbits of information designed to assure the public that a certifiable threat to public security has been identified and that his elimination has been designated as essential to the national interest by experts in the know. Thus, we are told that both the Pentagon and the CIA vetted the intelligence in this particular case and that the Pentagon, though initially reluctant to recommend a kill, finally came around to the CIA’s point of view. This sounds like a formal, substantive process of some sort, with healthy skepticism and adversarial argument — except that an American citizen’s life is being weighed in the balance without his knowledge and without reference to any of the laws and procedures by which the American government can legally take a life. And we are invited to acquiesce in the killing of a fellow citizen whose name we do not know.
The strategy appears to be working, too. The Los Angeles Times, in an editorial “troubled”by the report of a fresh targeting, lays down the following prescription:

“If the United States is again to deliberately take the life of one of its citizens without due process of law, leaders from the president on down must, at the very least, offer specific and credible proof that such action was absolutely necessary to prevent imminent attacks on Americans and that capturing the suspected terrorist was impossible.”.

The editorial doesn’t concede the right to assassinate as such, and it sweeps aside Holder’s attempt to present secret executive review as due process. But it lays down guidelines — some of them tracking Obama’s own announced criteria — for justifying a hit under theoretical circumstances. There should be “specific and credible proof” of an “imminent” attack (but how offered, and to whom?). It should be further demonstrated that there was no other way to prevent the attack (but how can this be proved, and, again, to whom?). The suggestion is that some court or other entity separate from the executive should have powers of review. But such a court would be necessarily secret, and thus fail to meet due process standards: a public charge communicated to an indicted individual with the right to confront his accusers and with the assistance of counsel to mount a defense that can challenge any and all evidence presented against him.

The Los Angeles Times declares that the government must do better if it wants the public to trust it with the “execution of U.S. citizens suspected of terrorism.” The slip of the tongue here is revealing. Suspicion is not legal determination, and “execution” can apply only to persons publicly convicted of capital crimes. To substitute “execution” for the properly applicable term, assassination, is to give the patina of law to an act that lies wholly outside it.

One might argue, in agreement with the Nazi-aligned theorist Carl Schmitt, that the true exercise of political authority lies in “states of exception” beyond all rules and norms, and that justice is merely ordinary bureaucratic administration. This would at least be an honest description of what Obama and his minions are trying to pass off as law. We could then decide whether, in any final analysis, government belongs to the people, or the people to their government.

Robert Zaller is a professor of history at Drexel University. He can be contacted at op-ed@thetriangle.org.